Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent's Licensure and Practice Respondent is now, and was at all times material hereto, a veterinarian authorized to practice veterinary medicine in the State of Florida under license number VM 1797. Respondent is a sole practitioner. He owns and operates the Kendall Lakes Pet Health Care Center in Dade County, Florida. Case No. 90-4549 On or about October 6, 1988, J.C. took his eight year old English Bulldog, 3/ R.C., to Respondent's office. The purpose of the visit was to have Respondent examine a lump that J.C. had discovered under R.C.'s chin while playing with the dog. Respondent had last seen R.C. a few years back when he treated him for an ear infection. Since that time R.C. had not been examined by any veterinarian. Upon approaching the dog in the examining room, Respondent noted a foul odor emanating from the dog's ears indicative of an ear infection. Furthermore, he could see that the dog's teeth had an extraordinary amount of tartar buildup and, more importantly, that the dog's lymph nodes were swollen. After palpating the dog's lymph nodes, Respondent told J.C., who was present during the examination, that it was likely that the dog had cancer 4/ and that he needed to take a blood sample from the dog. An attempt was then made to draw blood from the dog. R.C., however, in obvious discomfort, became unruly. He snarled, showed his teeth and shook his head. J.C. tried to restrain the dog by holding him down, but was unable to do so. As a result, no blood sample could be obtained. Conventional wire muzzles do not fit English Bulldogs because they are a brachycephalic or "smashed face" breed. Accordingly, in an effort to restrain R.C., Respondent tied R.C.'s mouth closed with a hospital lead. English Bulldogs tend to have congenitally small tracheas and anatomical deficiencies in the areas of their nose and throat which lead to difficulty in breathing. Consequently, caution must be exercised when muzzling this breed of dog. The practitioner should make sure that the dog is able to breath satisfactorily through its nose or that the muzzle is loose enough so that the dog can still breathe through its mouth. Unlike some English Bulldogs, R.C. was able to breath through his nose for an extended period of time, as evidenced by the fact that he slept with his mouth closed. As a general rule, tranquilizing is an attractive alternative to muzzling as a means of restraining an English Bulldog because respiratory compromise is less of a risk. The use of this method of restraint, particularly where the dog is in the advanced stages of cancer, is not free of problems, however. Whether tranquilizing or muzzling should be employed in a particular instance is a decision to be made by the practitioner based upon his assessment of the physical characteristics and condition of the dog under his care. It has not been shown that, in exercising his professional judgment to muzzle rather than to tranquilize R.C., Respondent acted in a manner inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or that he engaged in conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After he was muzzled, R.C. continued to struggle. J.C. was holding the dog around the head and shoulders, but was unable to control him. Respondent therefore placed a towel over R.C. to try to subdue the dog. J.C. meanwhile maintained his grip on the dog. Shortly thereafter, R.C. went limp and collapsed. Respondent picked up R.C. and carried him to a treatment table. He took a stethoscope to the dog's chest to listen for a heartbeat. Hearing none, he performed an external cardiac massage, but with no success. Respondent looked down R.C.'s throat and determined that, because R.C.'s lymph nodes were so swollen, it would not be possible to quickly pass an endotracheal tube through the dog's trachea. Respondent therefore had a member of his staff attempt to administer oxygen to R.C. by using a "face mask" device. While this technique, as a general rule, is relatively ineffective with this breed of dog, it was the best means available under the circumstances. Respondent instructed his staff to fill a syringe with epinephrine. They did so and he administered the drug to R.C. Under ideal conditions, epinephrine should not be administered before an ECG is performed to determine if epinephrine is indicated. In the instant case, however, while he had the equipment, Respondent did not have the time to perform an ECG on R.C. Throughout the time that these efforts were being made to revive R.C., an emotionally distraught J.C. was yelling and shouting at Respondent. While Respondent was unsuccessful in his efforts to resuscitate R.C., it has not been shown that these efforts were inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or constituted conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After R.C. was pronounced dead, J.C. did not request that an autopsy be done and therefore none was performed. Accordingly, it is impossible to determine with a high degree of medical certainty the cause of R.C.'s death. A member of Respondent's staff recorded information concerning R.C.'s visit on the dog's chart. The entries made, however, provided very little detail regarding what happened during the visit. There was no indication that a physical examination had been conducted. Furthermore, while there were notes that oxygen and "2 1/2 cc epinephrine" 5/ had been administered, the entries made did not reflect how they had been administered, nor did they indicate what other resuscitation efforts had been made. Also missing was an entry reflecting that an autopsy had neither been requested nor performed. Case No. 90-8113 On or about June 18, 1990, Detective Jerry Rodriguez of the Metro-Dade Police Department, who was working undercover at the time, met with Respondent at the Kendall Lakes Pet Health Care Center. The meeting was arranged by a confidential informant. After he was introduced to Respondent by the confidential informant, Detective Rodriguez entered into negotiations with Respondent to purchase Winstrol-V anabolic steroids. The negotiations culminated in Detective Rodriguez agreeing to buy a bottle of Winstrol-V from Respondent for $1,000. Respondent was led to believe by Detective Rodriguez that these steroids would be used for human consumption. Respondent accepted a $1,000 advance payment from Detective Rodriguez and issued him a receipt. Respondent did not fulfill his end of the bargain, nor did he ever have any intention to do so. He never made any steroids available to Detective Rodriguez, nor did he take any action, including ordering or prescribing the steroids, toward that end. 6/ A subsequent inspection of Respondent's veterinary facility conducted on or about June 18, 1990, revealed the presence of certain prescription medications that were beyond the expiration date or had obliterated labels which were missing lot numbers, manufacturers' names and addresses and expiration dates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Veterinary Medicine enter a final order (1) finding Respondent guilty of maintaining inadequate medical records, in violation of Section 474.214(1)(f), as charged in the Administrative Complaint issued in Case No. 90-4549; (2) imposing a $1,000.00 administrative fine and placing Respondent on probation for a period of one year for this violation; and (3) dismissing the remaining charges against Respondent set forth in the Administrative Complaints issued in Case Nos. 90-4549 and 90-8113. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1991.
The Issue The cause was initiated upon the filing of a Petition for Award of Attorney’s Fees and Costs, pursuant to Florida Statutes 57.111. A formal hearing was originally scheduled for Gainesville, Florida, however, pursuant to agreement of the parties it was dispensed with. The parties stipulated to the record to be considered in this proceeding, agreeing upon exhibits and upon a time period for submission of proposed final orders. The appearances were as follows.
Findings Of Fact The Petitioner, Samy H. Helmy, was a licensed veterinarian in the State of Florida at all times pertinent hereto. The license was suspended by Final Order of the Board of Veterinary Medicine on or about August 3, 1990 and the suspension was upheld on appeal. That Final Order became a Final Decision upon the Court’s Mandate and Notice issued on December 26, 1991. On or about February 21, 1992 Mr. Henry Scheid, in his capacity as an investigator for the Department of Business and Professional Regulation, Board of Veterinary Medicine, (DBPR) set up a “sting operation” in which he attempted to apprehend the Petitioner in activities which could be construed as unlawfully practicing veterinary medicine with a suspended license. Mr. Scheid’s investigative report is an exhibit by stipulation in this proceeding. Mr. Scheid acknowledges in this report that another person, Dr. S. Strahler was present on the Petitioner’s veterinarian practice premises at the time he made his investigation. Mr. Scheid also recounts in his investigative report that although the Petitioner examined the animal which was involved in the sting operation, when it became necessary to give an injection to the animal, an employee of the veterinary practice who proved to be Dr. Strahler, was called in to actually perform the injection. It does appear that the investigator, Mr. Scheid, was aware that a licensed veterinarian was practicing on the premises. He would thus seem to have been aware that Dr. Strahler may have been in a position to supervise Dr. Helmy’s practice under his suspended license. However, there is also contained in the investigative report a statement by the investigator to the effect that he interviewed Dr. Strahler. Dr. Strahler indicated that he had only worked on Dr. Helmy’s premises for several days in February 1992 and that indeed, Dr. Helmy had performed surgeries without Dr. Strahler’s assistance, which could reasonably be interpreted by Mr. Scheid that Dr. Helmy might have been performing veterinary practice in an unsupervised way. In the investigator’s report, page 10, reference is made to his interview with RFS (Dr. Strahler) as follows: “On February 27, 1992 investigator made phone contact with RFS. He advised he had only worked for subject; February 14, 1992, Friday, all day; February 15, 1992, Saturday, one-half day; and February 21, 1992, Friday, all day. During questioning RFS, with hesitation, did advise that subject was conducting surgeries, with or without RFS assistance. Further advised, he would cooperate as the last day he worked subject, he found out that subject’s license was suspended. After contacting investigator Sowder, Marion County Sheriff’s Office, a meeting with State Attorney for a sworn statement was set for March 4, 1992, at 2:00 p.m.” There are a number of interviews of animal owners who took their animals to Dr. Helmy, for examination and/or treatment. Descriptions of these interviews are recounted in the investigator’s report. The results of those interviews indicate that Dr. Helmy, was performing veterinary practice in terms of diagnosing, taking blood samples, and performing various aspects of treatment. (See the Respondent’s proposed Findings of Fact numbers six through sixteen, adopted here by reference). Although Dr. Helmy, could perform veterinary practice. under the statute cited below, so long as he was supervised by a duly licensed veterinarian in good standing with the Board, the interview of Dr. Strahler (“RFS”) indicates that indeed he may have been practicing without any supervision on some occasions. The important point is that the investigator had sufficient investigative facts to have a good faith belief that he had discovered the Petitioner, practicing with a suspended license, without proper supervision by a duly licensed veterinarian on the premises. He could thus reasonable conclude then that the Petitioner was not in compliance with the statute concerning supervision cited below. After his visits to the premises and contact with law enforcement authorities, Mr. Scheid filed the subject report on approximately April 19, 1992. Thereafter, the investigation apparently remained an open or active investigation, but as far as the evidence in this case shows, no administrative complaint was filed for a substantial period of time. In fact, on September 10, 1993 Nancy M. Snurkowski as chief attorney for the agency signed a document called a “Closing Order” on behalf of George Stuart, Secretary of the Department. That Closing Order indicates that the complainant, the agency, had alleged that the subject, Dr. Helmy, had violated Sections 474.213(1)(f) and 474.215(3), Florida Statutes (1991) for operating a veterinary establishment when the responsible veterinarian’s license had been suspended, or by knowingly employing an unlicensed person or persons in the practice of veterinary medicine. The Closing Order implies that the investigation substantiated the complaint in that the subject was a veterinary establishment operated by Dr. Helmy when his license to practice had been suspended. The Closing Order accounts that he continued to practice despite that suspension. The Closing Order states that he continued to practice despite that suspension. The Closing Order also states that: “[T]he establishment now lists Robert F. Strahler, DVM as a responsible veterinarian. Robert F. Strahler, DVM is a Florida-licensed veterinarian in good standing with an active license. He acquired the facility and premises permit number of VE0002026 on August 27, 1992. The previous permit number VE0001793 is no longer valid.” “The law: “Based on the foregoing, probable cause does exist at this time to believe that the subject was in operation while its responsible veterinarian’s license was suspended and it employed unlicensed individuals in the practice of veterinary medicine. However, since the unlicensed activity has been stopped and the responsible veterinarian holds a valid active license in good standing, this case will be closed.” Thus on September 16, 1993 apparently the agency elected to terminate the prosecution with this “Closing Order”. The agency however, does not admit in that Closing Order that probable cause to believe that unauthorized veterinary practice done by the Petitioner did not exist. Rather, it merely indicates that, since the investigation was commenced, Dr. Strahler had become a licensed supervising veterinarian, or a “responsible veterinarian” in good standing for the establishment. Therefore the violation previously believed to have been found by Mr. Scheid had been alleviated at that point. That Closing Order appears to have been merely the determination of the investigation at that point. The evidence before the Administrative Law Judge does not actually indicate that a formal administrative complaint, based upon a probable cause finding by the Board, had been made at that time or previously. Nevertheless, in a probable cause panel meeting of November 30, 1993 (by telephone conference call) (the transcript of which is stipulated into evidence in this proceeding as Exhibit 3) probable cause to file an proceed on the administrative complaint which gave rise to this case was found by the Board of Veterinary Medicine. This may seem a harsh determination, since the Chief Attorney with the Board had recommended terminating the prosecution prior to that probable cause finding. However, the investigative report and related documents indicate that there was adequate reason to believe that unauthorized veterinary practice by Dr. Helmy had been conducted on the premises on and around the time when Mr. Scheid made his visitor visits to the premises and interviews of customers and others. Thereafter, prosecution of the administrative complaint proceeded, (albeit slowly). Thus the Board litigated this case in 1993 until 1996. There is no question with attorney’s fees and costs were incurred by the Respondent (Dr. Helmy) in that administrative complaint case during that time. In fact, there is no dispute about the reasonableness of the fees and costs claimed in this proceeding. After attempting to conduct a hearing, but after at least one continuance, and before the case proceeded to formal hearing, the complaint was voluntarily dismissed by the prosecuting agency on June 5, 1996. Dr. Helmy made no admissions or agreements at any time to prompt the Department of file the motion for dismissal on the basis of a negotiated settlement. A related criminal case was proceeding during 1992 through 1994 in the Fifth Judicial Circuit for Marion County Florida. Dr. Helmy was being prosecuted by the State based upon the same set of factual circumstances developed by Investigator Scheid. A Motion to Dismiss was filed by defense counsel in that case and the Circuit Court granted that motion based upon an undisputed set of facts which are the same underlying facts that gave rise to the administrative complaint in the formal proceeding underlying this attorney’s fee case. The circuit judge in that proceeding dismissed the criminal case against Dr. Helmy on January 27, 1995, finding that Dr. Helmy was providing supporting assistance under the supervision of responsible, duly- licensed veterinarian, who acted as a responsible veterinarian as defined by Chapter 474 Florida Statutes. The Circuit Judge found that the Petitioner’s actions at the times pertinent to the criminal proceeding and the administrative prosecution were lawful since they were done under the supervision of a duly- licensed, active practicing veterinarian. The Administrative Law Judge ruled upon the Motion to Dismiss, and a subsequent motion, which raised the issues of collateral estoppel Res Judicata made by Dr. Helmy’s attorney in the formal proceeding underlying this attorney’s fee case. It was thus determined that the principals of collateral estopped and Res Judicata did not apply due to lack of mutuality of parties, etc. Accordingly, the administrative proceeding continued to remain active for sometime until the agency, on its own motion, voluntarily dismissed the matter on June 5, 1996. It is true as Petitioner contends, that a deputy sheriff from Marion County, as well as Mr. Scheid, testified by deposition that their opinions concerning Dr. Helmy’s guilt of unauthorized practice of veterinary medicine would be different if they assumed that his actions were performed under the immediate supervision of a licensed veterinarian. Dr. Gary Ellison, an expert witness for the Department in the Helmy case acknowledged, in his deposition, essentially the same thing that if “everything in the complaint” had been done under the immediate supervision of a licensed veterinarian then Dr. Helmy would not have broken the law. The fact remains, however, that at the time the investigation was commenced and Mr. Scheid conducted his interviews and conducted his operation on the then Respondent, Dr. Helmy premises, he had a reasonable belief that a violation had taken place. His conversation with Dr. Strahler himself could give him a good-faith belief that Dr. Strahler indeed did not truly supervise Dr. Helmy. Thus, the Board, at the time probable cause was found in the administrative complaint was filed, had a reasonable basis in fact and in law to proceed against Dr. Helmy, even if it was later determined that in fact, his practice on those premises had been lawful. While it may seem unduly harsh for the Board to find probable cause after its chief attorney had recommended closing of the investigation, the fact remains that, at the time probable cause was found there was substantial justification for the Board to believe that unauthorized veterinary practice had been conducted by the Petitioner on the premises. The language of the “Closing Order” does not obviate such a finding. Finance evidence into this proceeding in the form of Dr. Helmy’s tax returns for 1993 and 1994, as well as other evidence (see Exhibit 12) show that the Petitioner does not have a net worth of more than $2,000,000. The evidence, in its totality also shows that Dr. Helmy was operating a sole proprietorship of a professional practice dispensing veterinary services, at “Highway 200 Animal Hospital” at the time of the initiation of the Board’s action. This is documented in the investigative report and by the registration certificate for the veterinary establishment included in the record of this case as stipulated Exhibit 12. In fact, Dr. Helmy had entered into a business lease for the premises where he located to Highway 200 Animal Hospital with the lease specifying that the premises were to be occupied for a veterinary office, and the lease beginning June 15, 1990 and continuing through June 14, 1995. Thus, at all times pertinent hereto, Dr. Helmy had a lease for a business establishment operating as a veterinary practice from 1990 through 1995. His veterinary practice was not incorporated nor was it a partnership. It can only be inferred from the evidence available that it was a sole proprietorship of Dr. Helmy.
Recommendation Accordingly, having considered the foregoing findings of fact and conclusions of law, the preponderant evidence of record and pleadings and arguments of the parties, it is therefore ORDERED that the petition of Samy Helmy, D.V.M. is denied.DONE AND ORDERED this 6th day of January, 1997, at Tallahassee, Florida. COPIES FURNISHED: Robert A. Rush, Esquire 426 N.E. First Street Gainesville, Florida 32601 James E. Manning, Esquire Department of Business and Professional Regulation P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1997. 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Susan Foster Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues to be determined in this proceeding are whether Respondent's actions are exempt from the provisions of chapter 474, Florida Statutes, pursuant to section 474.203(5), and if not, whether Respondent violated section 474.214(1)(ee), Florida Statutes (2008). If Respondent's actions are not exempt and violate section 474.214(1)(ee), then what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. Respondent is and has been, at all times material to this Administrative Complaint, licensed to practice veterinary medicine in the State of Florida, having been issued license number VM 8029. Respondent's company, Equitransfer, LLC, is a limited liability company in the state of Florida. Equitransfer is involved with performing embryo transfers in recipient mares. Dr. Davila owned horses #331, #645, and T14. These horses died. Horse #645 had a foal out on September 16, 2009, and horses #331 and T14 had embryo placements which had not been birthed at the time of the horses' deaths. There are records of some sort that were requested from and turned over to the Department by Dr. Davila. Included is a document entitled "Verification of Completeness of Records" (Verification of Completeness form), which is a form on Department letterhead with blanks to be completed with the relevant information. This document as completed and received with the documents states the following: I, Jose R. Davila, DVM am the official custodian of patient records from recipient mares under Frances Ramirez. My title is Owner/President Equitransfer LLC. My employer's address is: PO Box 770, Summerfield FL 34492 (352)307-0944. I hereby verify that the I have searched the patient records maintained at Equitransfer, LLC and have determined that the attached records consisting of 1203 pages are true and correct copies of the patient records as requested pursuant to subpoena No. (left blank). The Verification of Completeness does not indicate that the records are for horses #645, #331 or T14, and does not state that the records were made at or near the time of the occurrence of the matters set forth, or from information kept in the course of regularly conducted activity. The Verification of Completeness form also does not state that the records were made as a regular practice in regularly conducted activity. The Verification of Completeness indicates that there are 1203 pages of records. The records submitted at hearing consist of approximately 955 pages. Moreover, the documents have Bates stamps on the bottom right hand corner, but no one could state who put the Bates-stamped numbers on the documents or why the documents were not in Bate-stamp order. Finally, while Erin Cameron testified that she was present when the records were received, she could not testify that the records presented at hearing consisted of all of the records provided by Dr. Davila. Dr. Davila stipulated that the documents in Petitioner's Exhibit 3 did not contain the items enumerated as required medical records in the Administrative Complaint. In other words, the documents did not constitute medical records under chapter 474.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Board of Veterinary Medicine enter a final order dismissing the charges in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of June, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2011.
Findings Of Fact In 1978, Wendy Weil obtained a Doctor of Veterinary Medicine degree, from the University of Bologna (Italy) , a school approved by the Board. She filed an application for licensure and paid the prescribed fee in January, 1979. She was issued a temporary license by the Board in May, 1979, pending completion of her examination which she took in August, 1979. She was advised in September, 1979, that she had failed a portion of the examination and that her temporary license had been revoked. Petitioner retook this portion of the examination in August, 1980 and was informed that she had passed in September, 1980. At the October, 1980 meeting of the Board, a decision was reached to deny Petitioner's application for licensure, and an order to this effect was issued October 16, 1980. The Board reconsidered its decision after discovering that the original investigative report contained forged affidavits unfavorable to Petitioner. The Board ordered a second investigation which was conducted in January, 1981. The report of the second investigation was presented to the Board which affirmed its earlier denial of Petitioner's application. Wendy Weil requested an administrative hearing on the Board's original denial under Section 120.57(1)(b), Florida Statutes, by petition dated November 6, 1980. The request for hearing was forwarded by Respondent to the Division of Administrative Hearings by letter dated January 6, 1981. Petitioner has been employed continuously at the Oakland Animal Hospital, Ft. Lauderdale, since January, 1979, except for a brief period around March, 1980. She initially served as a veterinary technician until receiving the temporary veterinary license in May, 1979. She thereafter performed veterinarian duties until October, 1979, when her temporary license was revoked and she reverted to veterinary technician status. Petitioner presented the expert testimony of six licensed veterinarians, including her employer, Dr. R. A. Johnson, owner of the Oakland Animal Hospital. This evidence established that unlicensed persons, usually referred to as veterinary technicians, are permitted to conduct a variety of medical functions under the supervision of licensed veterinarians. Such supervision does not necessitate the physical presence of the licensed veterinarian during performance of these tasks, but does require that he be immediately available. The tasks assigned veterinary technicians depend largely on individual skills. As a result of her training, Petitioner is authorized by her employer to perform any procedure which does not involve the actual practice of veterinary medicine, i.e., diagnosis, prognosis, prescribing treatment and performing surgery. While Petitioner held her temporary license she was permitted to practice veterinary medicine with the restriction that such practice be under the responsible supervision of a licensed veterinarian. Her employer, Dr. R. A. Johnson, provided this supervision. Petitioner sought the advice of Board members in October, 1979, regarding use of the title Doctor and limitations on her employment as a veterinary technician. As a result of her inquiry, Petitioner concluded that she could not properly use the title Doctor and thereafter discouraged such use by hospital personnel and clients. However, the title continued to be used on occasion in paging her within the clinic and on hospital forms. Petitioner's use of the title Doctor is associated with her degree in veterinary medicine and does not depend on grant of a license to practice. However, the use of the title Doctor in any context associated with her work at the Oakland Animal Hospital was misleading to the public and to clients of the animal hospital after her temporary license was revoked in October, 1979. Petitioner is identified in the yellow pages of the 1980 Ft. Lauderdale telephone directory as a Doctor of Veterinary Medicine associated with the Oakland Animal Hospital. This ad was placed by Petitioner's employer without her knowledge or approval. Similarly, stationery and business cards which identified Petitioner as a Doctor of Veterinary Medicine associated with the Oakland Animal Hospital were prepared and distributed without her approval. Some twenty coworkers and hospital clients called as witnesses by Petitioner attested to her efforts to accurately represent her status to the public. However, Respondent's witnesses Sharkey, Vilchez, Wright and Miller were clients of the hospital after October, 1979, and believed that Petitioner was a licensed veterinarian through their contacts with her. Witnesses Sharkey and Vilchez brought their pets to the Oakland Animal Hospital in March, 1980. Petitioner told Sharkey she was an intern, which Sharkey believed meant that she was a veterinarian. She did not tell Vilchez that she was or was not a licensed veterinarian, but Vilchez reasonably assumed so because Weil examined her dog, told her it had stones and that surgery would be required. Neither client saw anyone other than Petitioner except administrative personnel and technicians. However, Dr. Johnson subsequently called Sharkey at home to discuss her pet's condition. Witness Miller's dog was examined by Petitioner in April, 1980. Following an examination which included the taking of blood and fecal samples and the insertion of a swab in the animal's rectum, Petitioner informed Miller that the animal was hemorrhaging internally and should be left at the hospital for treatment. Miller assumed that Petitioner was a veterinarian as she heard her referred to as Dr. Weil, and saw no licensed veterinarian during her visit. Witness Wright, who is the mother of witness Miller, took her own dog to the Oakland Animal Hospital in April, 1980, where the animal delivered nine puppies by Caesarean section, all of which subsequently died. Wright had seen only Petitioner upon taking her pet to the Oakland Animal Hospital and was later called by Weil regarding the birth and death of the puppies. Wright therefore assumed Petitioner had performed the surgery. However, the testimony of Dr. Johnson established that he, and not Weil, had performed all surgical procedures.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be granted a license to practice veterinary medicine. DONE AND ENTERED this 3rd day of June, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1981. COPIES FURNISHED: Larry V. Bishins, Esquire 4548 North Federal Highway Ft. Lauderdale, Florida 33308 William F. Casler, Esquire 6795 Gulf Boulevard St. Petersburg Beach, Florida Tina Hipple, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Christopher Rolle, Esquire Assistant Attorney General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against Respondent's license to practice veterinary medicine, license number VM-2404, based on the violations of Section 474.214(1), Florida Statutes, as charged in three separate Administrative Complaints filed against Respondent.
Findings Of Fact At all times pertinent to the allegations in these cases, Respondent was a licensed veterinarian, having been issued license number VM-2404, by the Florida Board of Veterinary Medicine. On March 18, 2000, Respondent performed a spay on Rudy, a six-year-old cat owned by Sharon and James Leonard. Respondent discharged Rudy to Sharon and James Leonard on March 18, 2000. On the following day, when Rudy was not feeling well, the family took Rudy to the emergency clinic where she was seen and treated by Dr. Mark Erik Perreault. When seen by Dr. Perreault, Rudy was wobbly and disoriented, and had pale mucous membranes. In addition, Dr. Perreault observed hair sewn into Rudy's incision site. Because the cat was very tender, it was anesthetized, and a careful examination of the incision was made. That examination revealed the incision had been closed with very large suture material. Because of the cat's condition and his observations, Dr. Perreault recommended and received approval to re-open the incision, and conduct an exploratory operation. This surgery revealed Respondent sutured Rudy’s uterine stump leaving approximately one and a half inches of tissue below the suture. This amount of "stump" is excessive and leaves too much material to become necrotic. Respondent had closed the skin and body wall incisions with excessively large suture material. Respondent secured the body wall and skin incisions with only two throws (knots) in each closing suture. Both Dr. Perreault and Dr. Jerry Alan Greene testified regarding standard of care. It is below the standard of care to sew hair into an incision site or allow hair to become sewn into the incision site because it contaminates the surgical site. It is below the standard of care for veterinarians to use oversized suture material to close the incision site because an excessively large suture leads to excessive inflammation as the body absorbs the excessively large suture material. It is below the standard of care for veterinarians to secure the skin and body wall incisions with less than 5 to 6 throws on their sutures to ensure that the sutures do not loosen or become untied. The potential problems of not using enough throws are exacerbated by using larger suture material which is more likely to loosen. It is below the standard of care to leave an excessive amount of "stump" in the body cavity. An excess of necrotic tissue causes excessive inflammation. Pertaining to Rudy, Respondent’s records contain the notation, "0.6 Ket." Respondent testified that this indicated that he administered Ketaset. Respondent’s records do not indicate whether the administration was intravenously, intramuscularly, or subcutaneously. Respondent testified that he administered the Ketaset intramuscularly. It was below the standard of care for Respondent to fail to indicate the amount of medication administered, i.e., milligrams, cubic-centimeters, etc.; and to fail to indicate the method of administration. Respondent is the owner of V.I.P. Baseline clinic, a veterinary establishment located at 505 Northeast Baseline Road, Ocala, Florida 34470. On August 31, 2002, Teresa McCartney presented her male, white Maltese dog, Puffy, to Respondent at V.I.P. Baseline Pet Clinic for neutering. Teresa McCartney owned no other male, white Maltese dogs. Respondent performed a neuter on Puffy at V.I.P. Baseline Pet Clinic on August 31, 2002. On August 31, 2002, V.I.P. Baseline Pet Clinic was not licensed to operate as a veterinary establishment by the State of Florida Board of Veterinary Medicine. Teresa McCartney picked up Puffy from V.I.P. Baseline Pet Clinic on August 31, 2002. Puffy bled for approximately four days after the neuter was performed. On September 4, 2003, Teresa McCartney presented Puffy to Dr. Mark Hendon for treatment. Upon examination, Puffy was bleeding from the prepuce and from the site of the surgical incision. In addition, there was swelling subcutaneously and intra-dermal hemorrhage and discoloration from the prepuce to the scrotum. The animal indicated pain upon palpation of the prepuce, the incision site, and the abdomen. Dr. Hendon presented the owner with two options: to do nothing or to perform exploratory surgery to determine the cause of the hemorrhage and bleeding. The owner opted for exploratory surgery on Puffy, and Dr. Hendon anesthetized and prepared the animal for surgery. The sutures having been previously removed, upon gentle lateral pressure, the incision opened without further cutting. A blood clot was readily visible on the ventral surface of the penis, running longitudinally the length of the penis and incision area. Dr. Hendon immediately went to the lateral margins of the surgical field, where the spermatic vessels and cord were ligated, and found devitalized and necrotic tissue on both sides of the surgical field which appeared to be abnormal. He explored those areas and debrided the ligated tissues, exposing the vessels and the spermatic cord which he ligated individually. He then proceeded to examine the penis. Dr. Hendon found upon examination of the penis a deep incision into the penis which had cut the urethra, permitting urine to leak into the incision site, causing the tissue damage which he had debrided. Dr. Hendon had not used a scalpel in the area of the penis prior to discovering the incised urethra in the area of the penis, and he could not have been the cause of the injury. Dr. Hendon catheterized Puffy, and closed the incisions into the urethra and penis. Puffy recovered and was sent home the following day. Drs. Hendon and Greene testified about the standard of care in this case. It is below the standard of care to incise the penis or urethra of a male dog during a neuter because neither the penis nor the urethra should be exposed to incision during a properly performed surgery. Respondent’s medical record for Puffy did not indicate the type of gas which was administered to Puffy or that Ace Promazine was administered to Puffy. Respondent's anesthesia logs reflect the animal was administered Halothane and administered Ace Promazine, a tranquilizer. Rule 61G18-18.002(4), Florida Administrative Code, requires that a patient’s medical record contain an indication of the drugs administered to a patient. On September 13, 2002, Department Inspector Richard Ward conducted an inspection of V.I.P. Baseline Pet Clinic. The inspection revealed that Respondent failed to provide disposable towels. It was further revealed that Respondent provided insufficient lights in the surgical area of the premises. Finally it was revealed that Respondent did not have an operational sink in the examination area of the premises. Rule 61G18-15.002(2)(a)4.c., Florida Administrative Code, requires that all veterinary establishments have sinks and disposable towels in the examination area. Rule 61G18-15.002(2)(b)2.d., Florida Administrative Code, requires veterinary establishments that provide surgical services to provide surgical areas that are well lighted. On September 4, 2002, Elaine Dispoto presented her male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic, located at 505 Northeast Baseline Road, Ocala, Florida 34470. On September 4, 2003, Respondent practiced veterinary medicine at V.I.P. Baseline Pet Clinic by providing veterinary medical services to Cinnamon. On September 4, 2003, V.I.P. Baseline Clinic was not licensed by the State of Florida to operate as a veterinary establishment. Cinnamon was presented to Respondent with complaints of vomiting and dilated eyes. The owner expressed concern that the animal had been poisoned. Respondent apparently accepted that the animal had been poisoned, and formulated a plan of treatment, because he gave the animal an IV and administered one cubic centimeter of atropine to the animal, a common antidote for organophosphate poisoning. Respondent administered subcutaneously the IV's of Ringer's lactate to the cat. The owners picked up Cinnamon from Respondent, having heard a television news report which was unfavorable about Respondent. Respondent gave the cat to Mr. James Dispoto, who observed that the cat was not doing well, although Respondent indicated that the cat was doing better. Mr. Dispoto was sufficiently concerned about the status of the cat that he took the animal immediately to Ocala Veterinarian Hospital. There the cat was examined by Dr. Fleck. Dr. Fleck found that Cinnamon was in extreme distress; lying on his side and non-responsive to stimuli. A cursory examination indicated that the animal was very dehydrated, approximately 10 percent, and passing yellow, mucousy diarrhea, uncontrollably. His pupils were pinpoint and non-responsive. Upon calling Respondent, Respondent told Dr. Fleck that on the first day he had treated Cinnamon, he had given the cat atropine, dexamethasone, and lactated Ringer's subcutaneously. On the second day, he had given the cat another injection of dexamethasone, penicillin, and lactated Ringer's subcutaneously. Based upon her assessment of the animal, Dr. Fleck wanted to get some blood work to establish what kind of state the rest of the body was in and to start an IV. The owner's consented, and blood was drawn and an IV drip started of normal saline at 25 mils per hour. While the blood work was being started, the cat had a short seizure, and within five minutes, had another bad seizure, going into cardiac arrest and died. A necropsy was performed which was unremarkable. The only significant findings were that the cat was dehydrated. There were indications the cat had received fluids along the ventral midline. The bowels were totally empty and there were no substances within the stomach, intestines, or colon. There was slight inflammation of the pancreas. Samples were taken of the pancreas, liver, kidney, and lung. Analysis of these samples was inconclusive. A cause of death could not be determined. The clinical presentation was very indicative of organic phosphate poisoning. Organophosphates are the active ingredient in certain common insect and garden poisons. However, there were no findings that pin-pointed poisoning as a cause of death. Dr. Greene testified concerning his examination of the files maintained on Cinnamon by Respondent. They reflected Respondent administered one cubic centimeter of atropine on the first day and another cubic centimeter on the second day. Dr. Greene's testimony about the administration of atropine is contradictory. He testified at one point that, based on the cat's weight, a proper dose would be about 2.5 cubic centimeters and Respondent did not give enough; however, his answer to a question on cross-examination later indicated that the amount of atropine given was more in line with what was administered. Respondent faced a bad set of alternatives in treating Cinnamon. The cat presented with poisoning symptoms and suggestions of poisoning by the owners. He could run tests and try and determine exactly what was ailing the cat. However, if he did this without treating the possible poisoning, the cat might have died from the poison before he determined what was wrong with the cat. He could begin to treat the cat for poisoning based upon the owner's representations, and perhaps miss what the cat's problem was. He cannot be faulted for treating the most potentially deadly possibility first. It is noted that a full necropsy could not pinpoint the cause of the animal's problem(s). While Respondent may have run additional tests, they would not have been any more revealing. Atropine is the antidote for organophosphate poisoning and is helpful in controlling vomiting. It is clear from the file that Respondent's working diagnosis was poisoning. He treated the cat with the appropriate drug in approximately the correct dosage. Dr. Greene testified that it was a deviation from the standard of care not to administer fluids intravenously to Cinnamon because an ill patient may not absorb fluids through subcutaneous injection. Based upon Dr. Fleck's discussion of the issues involved in administering fluids intravenously, it does not appear nearly so clear cut as Dr. Greene suggests, but is a matter of professional judgment. Dr. Greene testified it was a deviation from the standard of care to administer lactated Ringer's solution to Cinnamon instead of sodium chloride or normal saline. Again, the choice of normal saline versus lactated Ringer's is one of professional judgment and not standard of care. Dr. Greene opined that it was a deviation from the standard of care to administer only 300ml of fluids to Cinnamon because 300ml is an insufficient amount of fluids to treat for dehydration or to even sustain Cinnamon under the circumstances. Dr. Greene assumed that the all of the hydration was via "IV." The testimony was that the cat did take some water orally; therefore, Dr. Green's predicate was flawed. Respondent administered dexamethsone to Cinnamon. Respondent failed to indicate that he administered dexamethasone in Cinnamon’s record. It is a deviation from the standard of care to fail to indicate the administration of dexamethasone in a patient’s record. Respondent administered penicillin to Cinnamon. Respondent’s records for Cinnamon indicate that he administered penicillin-streptomycin to Cinnamon. Respondent's records for Cinnamon indicate that Respondent did not check on the animal frequently, which, given his condition and the multiple problems which the cat was suffering, was a failure to render the standard of care necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Board enter its final order: Finding that Respondent violated the standard of care in treating Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(r), and imposing an administrative fine upon Respondent of $2,000 for each violation; Finding that Respondent violated the requirement to keep adequate records with regard to Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(ee), and imposing an administrative fine upon Respondent of $1,000 for each violation; Finding that Respondent violated the requirement to obtain a license for a premises, contrary to Rule 61G18- 15.002(2), Florida Administrative Code, which is a violation of Section 474.214(1)(f), and imposing an administrative fine upon Respondent of $2,000; Finding that the record of Respondent's previous violations and the violations found above reflect that he is unqualified and unfit to practice veterinary medicine in the State of Florida, and revoking immediately his license, without leave to reapply; Requiring Respondent to pay costs incurred in the investigation and prosecution of these cases in the amount $5,697.96, plus the costs incurred at the final hearing; and Opposing any effort by Respondent to practice veterinary medicine while an appeal in this case is taken. 28 DONE AND ENTERED this 14th day of October, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas V. Infantino, Esquire 180 South Knowles Avenue, Suite 7 Winter Park, Florida 32789 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 29 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 2399-2202
Findings Of Fact The parties stipulated that the following factual allegations contained in the Administrative Complaint were admitted by the Respondent and were not at issue at the formal hearing. The following findings of fact are based on that stipulation. Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to Section 20.165, Chapter 455, and Chapter 474, Florida Statutes. Respondent is a licensed veterinarian having been issued license number VM 0000231. Respondent's last know address is DBA (sic) Miami Veterinary Hospital, 3520 N.W. 36th Street, Miami, Florida 33142. On or about May 19, 1992, J.F. presented his kitten, aged approximately seven months, to Respondent for shots, a spay, and boarding. On or about May 19, 1992, Respondent noted in the kitten's [medical] records that all of its vital statistics were "ok" or normal. On or about May 20, 1992, Respondent spayed the kitten. 1/ On or about May 21, 1992, Respondent noted in the kitten's records that it had diarrhea and no appetite. 2/ On or about May 22-24, 1992, Respondent noted in the kitten's records that it was treated with antibiotics, fluids, vitamins, and given intensive care (sic) with hand-feeding. On or about May 25, 1992, Respondent noted in the kitten's records that its condition was greatly improved. On or about May 26, 1992, Respondent noted in the kittens's records that its condition was normal. On or about May 27, 1992, the kitten died. 3/ "Spay" is a layman's term which may refer to an ovariohysterectomy. Respondent failed to perform any lab work on the kitten when it became ill during the period after the surgery and until its death. Rule 61G18-18.002(1), Florida Administrative Code, provides that medical records shall contain all clinical information pertaining to the patient with sufficient information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered. Respondent had been practicing veterinary medicine in Florida for 48 years at the time of the formal hearing. Respondent testified, credibly, that he has performed a minimum of 10,000 spays during the course of his practice. At the times pertinent to this proceeding, Respondent was the owner and sole practicing veterinarian at Miami Veterinary Hospital in Miami, Florida. On May 19, 1992, James Forney presented his cat named Cathy to Respondent's clinic to be boarded for one week. During that week, the Respondent was to spay Cathy and give her any appropriate shots. "Spay" is a layman's term that may refer to an ovariohysterectomy. The term ovariohysterectomy is generally understood by veterinarians to be a procedure during which the ovaries and both horns of the uterus are removed. On or about May 20, 1992, Respondent spayed Cathy. Respondent placed the cat under anesthesia and made a small incision, which he referred to as a "bottle hole incision". Through this small incision, he removed the ovaries and a portion of both uterine horns. He did not remove the stumps of either uterine horn and he did not remove the uterus. The cat died on May 27, 1992. Dr. James Bogdansky performed an autopsy of Cathy on May 28, 1992, during which he made contemporaneous records of his examination. Dr. Bogdansky observed that Cathy's uterus and portions of both uterine horns were present. The ovaries were not present. There was a dispute in the evidence as to whether the Respondent was negligent by failing to remove all portions of both horns of the uterus when he spayed the cat. The testimony of Dr. Ellison and that of Dr. Diluzio established that the preferred medical practice in performing an ovariohysterectomy is to completely remove through an appropriately placed and sized incision the ovaries, all portions of both horns of the uterus, and the uterus. Dr. Ellison testified that there is no medical benefit to leaving portions of both uterine horns and the uterus and that the chance of a rare, life-threatening infection (pyometritis) increases when the horns of the uterus are not removed. 4/ Dr. Ellison further testified that the portions of the uterine horns not removed may become wrapped around the bladder, causing adhesions or strictures on the bladder. 5/ Dr. Ellison was of the opinion that Respondent was negligent in failing to remove both uterine horns and the uterus. 6/ From the testimony of the Respondent and Dr. Diluzio, it is found that veterinarians in South Florida commonly make a small incision which permits the removal of the ovaries and thereby sterilizes the animal, but does not permit the removal of the two horns of the uterus in their entirety. The practitioner has to exercise clinical judgment to determine how much of the horns of the uterus will be left. The main benefit of using a smaller incision is that the animal suffers less trauma from the surgery. Dr. Diluzio agreed that the method described by Dr. Ellison was the preferred method of performing an ovariohysterectomy. Dr. Diluzio's main concern was that a subsequently treating veterinarian may assume that the Respondent had removed both uterine horns and the uterus, which could lead to a misdiagnosis in the event the cat ever had a uterine infection. Notwithstanding his concern and the concerns expressed by Dr. Ellison, Dr. Diluzio did not believe that the method used by the Respondent was below an accepted standard of care. Dr. Diluzio's opinion is buttressed by evidence as to procedures being followed by practitioners such as the Respondent. It is concluded that the Petitioner did not establish that the procedure Respondent followed in spaying Cathy was below an accepted standard of care. In reaching that conclusion, the undersigned is persuaded by the testimony of Dr. Diluzio that the procedure followed by Respondent in spaying the cat, Cathy, is not an uncommon procedure. Since there was no evidence that he used poor clinical judgment in the procedure he followed, it is found that Petitioner failed to establish that Respondent was negligent or incompetent by his spay of the cat, Cathy. Petitioner asserts that the Respondent failed to adequately look for a working diagnosis of the cause of the cat's illness following surgery. The Respondent was not asked what his diagnosis was for the postoperative illness. From Dr. Diluzio's testimony based on the antibiotics and other treatment administered, it appears that the working diagnosis was infection of unknown etiology. Respondent did not perform any lab work on the cat in the postoperative period to determine the cause of the illness. Instead, Respondent treated the cat symptomatically. The spay occurred on or about May 20, 1992. The medical records noted that the cat had no appetite on May 21, 1992. The scanty medical records note that the cat began to improve on May 25, 1992. The cat's physical condition between the onset of the improvement and the date of improvement is not reflected by the medical records. The evidence established that Respondent closely monitored the cat's condition following the surgery and that he administered treatment to the cat. Except for Dr. Ellison's question as to why the steroid prednisone was administered, Dr. Ellison and Dr. Diluzio found no fault with the treatment actually administered by Respondent. Dr. Ellison was of the opinion that Respondent was negligent in failing to perform basic blood tests, including a complete blood count, because such tests may have determined the cause of the cat's illness or indicated the proper course of treatment. Blood tests could also have helped determine whether the cat was hemorrhaging internally. Dr. Diluzio was of the opinion that it was acceptable practice to treat the cat symptomatically for the first few days after surgery without ordering lab work. Dr. Diluzio opined that since the cat appeared to improve between the onset of the illness and its death, lab work was not necessary in this case. Because of these conflicting opinions, both of which are supported by logical rationale, it is concluded that the Petitioner failed to establish that Respondent exceeded his clinical judgement or that he practiced below an accepted standard of care in his postoperative treatment of this cat by treating the cat symptomatically instead of ordering lab tests. On May 19, 1992, Respondent began a medical record for Cathy on a form that contained an area for identifying information as to the owner and as to the animal. The form also had spaces to record the findings of a physical examination, a description of any abnormal symptoms, any diagnosis made, any treatment administered, and any appropriate remarks. On May 21, 1992, continuing through May 24, 1992, Respondent noted in Cathy's records that she was treated with antibiotics, fluids, vitamins, and given intensive care with hand-feeding. The medical records should have reflected the Respondent's working diagnosis for the cat's illness so as to justify the treatment administered. The records do not contain a working diagnosis for the cat's illness and failed to justify the treatment administered. The medical records should have reflected the dosages of antibiotics given to the cat. The records do not record the dosages of antibiotics given to Cathy. The medical records should have stated the reason(s) the cat was given one cc. of the steroid prednisone (referred to in the records as "pred"). There were no medical records kept that justified the administration of this steroid. The medical records should have reflected the findings of his physical examinations following the surgery. The medical records kept by Respondent did not reflect the findings of his physical examinations of the cat during that period. He failed to document the physical examinations he made after the cat's operation. He did not record the cat's weight, its daily temperature, or the dosages of the antibiotics administered. Petitioner established that the postoperative care given the cat was not adequately documented by Respondent's medical records. Respondent had never, prior to this proceeding, been the subject of a disciplinary action by the Department. During the course of his practice, Respondent served four years on the Board of Veterinary Medicine for the State of Florida, has served as the president of the South Florida Veterinary Association and as the treasurer of the state association.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. Based on those findings and conclusions, it is recommended that Petitioner find Respondent not guilty of the violations alleged in Counts One and Four of the Administrative Complaint, and guilty of the violations alleged in Counts Two and Three of the Administrative Complaint. For the violations of Counts Two and Three, it is recommended that the Petitioner issue Respondent a formal reprimand and place his licensure on probation for a period of six months. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1995.
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to chapters 455 and 474, Florida Statutes. At all times material to this proceeding, Respondent Philip J. Aleong has been licensed as a veterinarian in the State of Florida, having been issued license number VM 6466. Respondent obtained his veterinary degree from Tuskegee University in 1994, and began to practice veterinary medicine in Florida the same year. In 1996, Respondent moved to Maryland, where he was employed at a race course for approximately two years. Respondent returned to Florida in 1997 or 1998, where he has continued to practice veterinary medicine. From the evidence adduced during the final hearing, it appears that much of Respondent's practice involves the provision of prophylactic, pre-race medical services to thoroughbred racehorses. Prior Misconduct Relevant to Respondent's Second Affirmative Defense On September 14, 2006, Petitioner filed an administrative complaint that alleged, in part, that Respondent failed to maintain radiographs and other records related to a pre-purchase examination of racehorse "C. Brooke Run," which was conducted in April of 2003 at the Ocala Breeders' Sale. Pursuant to Respondent's request for a formal hearing to contest the allegation, the matter was referred to DOAH in May 2007 and assigned Case No. 07-2415. On April 2, 2008, following the conclusion of the proceedings at DOAH, Petitioner entered a Final Order reprimanding Respondent, placing his license on probation for six months, and imposing a $1,000 fine.5 The Instant Complaint On or about March 14, 2006, Petitioner6 served Respondent with six subpoenas duces tecum, which directed him to produce all documents or other veterinary records concerning the following racehorses: "Musical Beat," "Orlik," "Suave Prince," "Fast Tracker," "Dondoca," and "Bolido." Subsequently, on May 30, 2006, Respondent provided the requested documents, which related to veterinary services provided to the horses on various dates during 2004 and 2005. Three months later, on August 25, 2006, an investigative report was completed and forwarded at some point thereafter to Petitioner's legal department. Subsequently, on January 4, 2008, Petitioner filed an Administrative Complaint against Respondent that is the subject of this proceeding. Although Respondent filed an Election of Rights form on February 4, 2008, which requested a formal administrative hearing, the matter was not referred to DOAH until April 30, 2010. Petitioner's sole witness at the final hearing in this cause was Dr. Faith Hughes, who was accepted by the undersigned as an expert in the field of veterinary medicine. Dr. Hughes testified that at the request of the Department, she had examined the medical records provided by Dr. Aleong to determine if they complied with the requirements of section 474.214(1)(ee) and Florida Administrative Code Rule 61G18-18.002. Dr. Hughes opined, and the undersigned agrees, that the records of six horses suffered from various deficiencies, which included: "Musical Beat": Medications were administered, but the frequency was not specified for any of the drugs. In addition, while blood work was done, the records fail to indicate why blood was drawn or what the result was. "Orlick": Medications were administered, such as Bactrim, but no amount or frequency was indicated. "Suave Prince": Penicillin and other medications were administered, but no amount or frequency was recorded. "Fast Tracker": Although the records indicate that blood work and radiographs were taken, no results were documented. Further, it could not be determined from the November 15, 2004, record if Depo Provera or Depo Medrol was administered, as the record merely indicates the abbreviation "DEPO." In addition, the records failed to demonstrate the frequency the various drugs were administered. Finally, while blood work was done, the records contain no results. "Dondoca": With respect to each medication administered, which included Bactrim and Cortisone, there was no indication as to the dosage or frequency. "Bolido": Medications were administered, but the amount and frequency were not documented with respect to each. Further, the records indicate that radiographs were taken, but no findings were documented. In his defense, Respondent presented the testimony of Dr. Joseph Zerilli, who was accepted by the undersigned as an expert in veterinary medicine. Dr. Zarelli opined that the records concerning each of the horses contained sufficient information to comply with the applicable statute and rules. Similarly, Respondent testified on his own behalf that the records relating to each of the horses were adequate. The undersigned is not persuaded by the testimony of Respondent or Dr. Zarelli on this point. However, Respondent testified, credibly, that no animal was harmed, nor was the public endangered, as a result of the alleged recordkeeping violations in this matter. Respondent further testified, and the undersigned accepts as true, that negative action against his license (i.e., suspension or revocation) would detrimentally affect his livelihood. Ultimate Findings The undersigned accepts Dr. Hughes' testimony as detailed in paragraph ten of this Recommended Order and finds, as a matter of ultimate fact, that Respondent violated section 474.214(1)(ee).7 Respondent has failed to prove his first affirmative defense, wherein he alleges that Petitioner is arbitrarily and selectively applying its rules against him based in part on his race. No evidence was adduced by Respondent to demonstrate that Petitioner has declined to prosecute similarly situated persons (i.e., veterinarians accused of inadequate recordkeeping). Respondent also failed to demonstrate that the instant charge should have been brought in an earlier administrative proceeding, and as such, there is no showing that Petitioner impermissibly engaged in a "splitting of the action." Accordingly, Respondent's second affirmative defense is rejected. With respect to his third affirmative defense, Respondent demonstrated a substantial delay in the prosecution of this matter that violated the requirements of section 455.25(4), Florida Statutes. However, this affirmative defense is also rejected, as Respondent was unable to demonstrate that the delay resulted in prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding that Dr. Phillip J. Aleong violated section 474.214(1)(ee), Florida Statutes. It is further recommended that the Board issue a letter of reprimand, place Dr. Aleong's license to practice veterinary medicine on probation for a period of six months, and require that he pay a fine of $1,500.00, as well as $203.74 for the costs of investigation,10 within 90 days of the entry of the final order. DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2010.
The Issue Whether Respondent's License to practice veterinary medicine should be revoked or suspended for alleged violations of Sections 474.31(6) & 474.31(12), Florida Statutes. An Order was issued on December 5, 1975, consolidating this case for hearing with the case of Florida Board of Veterinary Medicine vs. Cristobal M. Gonzalez Mayo, D.V.M., Docket No. 751925, because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel to represent him at his own expense and he elected to represent himself. He also was advised of other rights under the Administrative Procedure Act, including the right to testify as a witness, if he so desired. Respondent indicated his understanding of these rights as explained to him by the Hearing Officer.
Findings Of Fact Respondent holds license no. 231 issued by the State of Florida, Department of Professional and Occupational Regulation, Board of Veterinary Medicine, which he received on March 30, 1944. The license is currently in effect (Petitioner's Exhibit l). Respondent has been a veterinarian for some 29 years and practices his profession at 3520 N.W. 36th Street, Miami, Florida (Testimony of McGee). Respondent employed Sergio Gutierrez, D.V.M., a veterinarian with approximately 25 years of experience, but who was not then licensed by the Florida Board of Veterinary Medicine, on December 6, 1974, for a period of approximately 3 months. At the time he was hired, Dr. Gutierrez exhibited various licenses from other jurisdictions to the Respondent and the latter gained the impression that Dr. Gutierrez held a temporary Florida license, even though he did not ask that it be shown to him. At that time, Dr. Gutierrez had submitted his license application to the Board of Veterinary Medicine, but it had not been acted upon by the Board (Testimony of Gutierrez, McGee). On December 6, 1974, James Gillece, an investigator with the Department of Professional and Occupational Regulation, took a cat to the Respondent's place of business in order to investigate a complaint that an unlicensed veterinarian was employed there. Upon arrival, he informed the receptionist that the cat was sick and asked her assistance. He was referred to Dr. Gutierrez who gave the cat inoculations for rabies and distemper. Gillece thereupon paid $19.00 for the services and received a receipt. He returned on December 13, presented his identification to Dr. Gutierrez and asked him if he was licensed to practice veterinary medicine. Dr. Gutierrez informed him that, although he was licensed in 40 states, he was not so licensed in Florida. Although Respondent was not present when the cat was treated, Dr. Gutierrez testified that Respondent exercised general supervision over his activities during his employment (Testimony of Gillece, Gutierrez, McGee) On March,4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Respondent's Clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for the Respondent. Without disclosing their purpose, Correa informed the Respondent's receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Dr. Cristobal Gonzalez Mayo, in the treatment room. Mayo checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Respondent's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Dr. Mayo signed Respondent's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at Respondent's clinic, they did not see the Respondent on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Respondent was in the back office at the time in question suffering from a headache and had asked his receptionist, to have Dr. Mayo give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Dr. Mayo's lack of a Florida license, Respondent did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent Mayo always checked with Respondent on a diagnosis and the latter would then prescribe the proper treatment. Dr. Mayo followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Respondent as to the treatment that was thereafter performed. Dr. Mayo was not licensed by the Florida Board of Veterinary Medicine until, July 27, 1975. Respondent professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Dr. Mayo testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Dr. Mayo to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2).
Recommendation That the charges against Harold M. McGee, D.V.M., be dismissed. DONE and ENTERED this 2nd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1976. COPIES FURNISHED: Ronald C. LaFace, Esquire 101, E. College Avenue P.O. Box 1752 Tallahassee, Florida Harold M. McGee, D.V.Mp. Miami Veterinary Clinic 3520 Northwest 36th Street Miami, Florida 33142
